Fighting Transnational Bribery in Croatia

8. International co-operation

Abstract

This chapter reviews Croatia’s framework for seeking and providing mutual legal assistance and extradition to determine whether it is in line with the standards set out in the OECD Anti-Bribery Convention.

International co-operation is the fifth accession criterion on the legal and legislative framework for fighting foreign bribery. The OECD Working Group on Bribery assesses an accession candidate’s framework for seeking and providing mutual legal assistance (MLA) and extradition against Arts. 9 and 10 of the Convention. The Working Group also considers any other information that comes to its attention and which is relevant to the candidate’s capacity to seek and provide MLA and extradition.

8.1. Mutual legal assistance

Convention Art. 9(1) requires countries to provide prompt and effective legal assistance for the purpose of criminal investigations and proceedings of offences within the scope of the Convention. Assistance should also be provided for non-criminal proceedings within the scope of the Convention brought against a legal person.

8.1.1. Laws, treaties and arrangements for mutual legal assistance

Croatia is party to the following multilateral treaties that provide for MLA in foreign bribery cases: the European Convention on Mutual Assistance in Criminal Matters; United Nations Convention against Corruption; and United Nations Convention against Transnational Organized Crime. Croatia indicates that it is also party to bilateral MLA treaties with Austria, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia, and Slovenia. A bilateral MLA treaty with Turkey is signed but not in force. Croatia provides MLA in respect of “international and supranational organisations whose member the Republic of Croatia may become, if so stipulated in an international treaty” (Art. 1(5) of the Mutual Legal Assistance in Criminal Matters Act, MLACMA). Croatian authorities state that, if Croatia accedes to the OECD Anti-Bribery Convention, it would accept Convention Art. 9 as a basis for seeking and providing MLA in foreign bribery cases.

MLA with EU member countries is governed by separate legislation, the Judicial Co-operation in Criminal Matters Act with the Member States of the European Union. Croatia implemented the European Investigation Order in 2017 (European Judicial Network, 2017[1]).

Non-treaty-based MLA is governed by the MLACMA. Art. 4 states that MLA “is afforded in the widest sense, in compliance with the principles of domestic legal order, principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights.” Art. 3(1)(1) describes the types of assistance available, namely “procuring and transmitting articles to be produced in evidence, service of writs and records of judicial verdicts, appearance before the court of witnesses for testimony and other acts necessary to carry out the court proceedings”.

MLACMA Art. 6 sets out the authorities and channels for communicating MLA requests. The Ministry of Justice and Public Administration (MOJ) is the central authority for sending and receiving requests. Urgent requests may be communicated through Interpol. The MOJ sends and receives requests through the diplomatic channel unless a treaty provides otherwise. Croatian judicial authorities may exceptionally send MLA requests directly to foreign authorities where explicitly permitted by treaty or the MLACMA. In such cases, the judicial authority provides a copy of the request to the MOJ.

8.1.2. Dual criminality for mutual legal assistance

Convention Art. 9(2) states that, where a country makes MLA conditional upon the existence of dual criminality, the condition is deemed to have been met if the offence for which the assistance is sought is within the scope of the Convention.

Croatian authorities state that dual criminality is required for MLA, despite the absence of an express provision stipulating this requirement in the MLACMA. Croatia executes an MLA request “provided that both countries criminalise the conduct underlying the offence, regardless of whether both countries place the offence within the same category of offence or denominate the offence by the same terminology”.

Croatia cannot provide MLA for non-criminal proceedings for foreign bribery brought by foreign authorities against a legal person. Under the MLACMA, MLA is provided “in respect of criminal acts” (Art. 1(2)). It is also available “in misdemeanour proceedings brought by the administrative authorities, in respect of acts which are punishable under the Croatian law by pecuniary fine, by virtue of being infringements of the rule of law and where in such proceedings the decision of the administrative authority may give rise to proceedings before a court having subject matter jurisdiction in criminal matters” (Art. 1(3)). This provision likely would not apply to foreign administrative proceedings against legal persons for foreign bribery.

The issue of providing MLA for non-criminal proceedings within the scope of the Anti-Bribery Convention brought against a legal person has arisen in Parties to the Convention. The OECD Working Group on Bribery has thus recommended that countries ensure that a broad range of MLA, including coercive measures, can be provided in foreign bribery-related civil or administrative proceedings against a legal person to a foreign state whose legal system does not allow criminal liability of legal persons.1

8.1.3. Other grounds of refusal

Convention Art. 9(3) states that a country shall not decline to render mutual legal assistance for criminal matters within the scope of the Convention on the ground of bank secrecy. No other grounds of denial are mentioned in the Convention.

MLACMA Arts. 12-13 set out the grounds for refusal. MLA may be denied for a political offence, a fiscal offence or an insignificant criminal offence. It may also be refused if a request would prejudice the sovereignty, security, legal order or other essential interests of Croatia. Requests must be refused if the absolute statute of limitations has expired, or if criminal proceedings are pending in Croatia against the prosecuted person for the same criminal offence.

Ne bis in idem is also a mandatory ground for denying MLA, although the definition of this concept may be overbroad. Under MLACMA Art. 13(1), a request must be refused if the accused has been acquitted in Croatia for the same offence based on the substantive-legal grounds; if he/she was acquitted of the punishment; or if a sanction was executed or may not be executed pursuant to the law of the country in which the verdict has been passed. However, the provision also requires MLA to be denied “if a procedure against [the accused] has been discontinued”. Croatian authorities state that this refers to the suspension of criminal proceedings in Art. 380 of the Criminal Procedure Act. This provision allows proceedings to be suspended on grounds other than the merits, such as when the prosecutor drops the charge, or if there are “other circumstances that preclude criminal prosecution”.

8.2. Extradition

Convention Art. 10(1) provides that foreign bribery shall be deemed to be included as an extraditable offence under the laws of the Parties and the extradition treaties between them. Art. 10(2) states that, if a Party which makes extradition conditional on the existence of an extradition treaty receives a request for extradition from another Party with which it has no extradition treaty, it may consider this Convention to be the legal basis for extradition in respect of the offence of bribery of a foreign public official.

8.2.1. Laws and treaties for extradition

Croatia is party to the following multilateral treaties that provide for extradition in foreign bribery cases: the European Convention on Extradition and additional protocols; United Nations Convention against Corruption; and United Nations Convention against Transnational Organized Crime. Croatia implemented the European Arrest Warrant. Croatia indicates that it is party to bilateral extradition treaties with Bosnia and Herzegovina, Montenegro, and North Macedonia. A treaty signed with Serbia is not yet in force but “provisionally applied”, according to Croatia. Croatian authorities state that, if Croatia accedes to the OECD Anti-Bribery Convention, it would accept Convention Art. 10(2) as legal basis for extradition in foreign bribery cases.

In the absence of a treaty, extradition may be granted on the basis of reciprocity (MLACMA Art. 34(5)). Extraditable offences are those that are punishable by imprisonment of at least one year or a more severe penalty (Art. 34(2)). The Ministry of Justice and Public Administration is the central authority for incoming and outgoing extradition requests (Arts. 6(2) and 40). Incoming requests are transmitted to the competent court where the person sought is found (Art. 45). The court conducts a hearing to determine whether the statutory preconditions for extradition are met. The decision may be appealed to the Supreme Court (Arts. 55-56). If the courts allow extradition, the Minister of Justice decides whether to surrender the person sought (Art. 57). This procedure can be bypassed with the consent of the person sought (Art. 54).

8.2.2. Dual criminality for extradition and other grounds of refusal

Convention Art. 10(2) states that extradition for foreign bribery “is subject to the conditions set out in the domestic law and applicable treaties and arrangements of each Party. Where a Party makes extradition conditional upon the existence of dual criminality, that condition shall be deemed to be fulfilled if the offence for which extradition is sought is within the scope of Article 1 of this Convention.”

Dual criminality is a precondition for extradition. MLACMA Art. 35(3) states that extradition is not allowed “if the offence for which extradition is claimed is not a criminal offence in both domestic law and the law of the state in which it was committed”.

MLACMA Art. 35 sets out additional grounds for denying extradition. Extradition is refused if the underlying offence was committed on Croatian territory, or against Croatia or its national; the statute of limitations has expired; the person sought has been convicted or finally acquitted of the same offence by a court in the requesting state; Croatia has initiated criminal proceedings against the person sought for the same offence; if the identity of the person sought is not determined; or if there is insufficient evidence to establish a reasonable suspicion that the person sought committed the offence. Extradition may be refused if Croatia may take over the prosecution of an offence, and if this would be appropriate for the “social rehabilitation” of the person sought.

8.2.3. Extradition of nationals

Convention Art. 10(3) states that “each Party shall take any measures necessary to assure either that it can extradite its nationals or that it can prosecute its nationals for the offence of bribery of a foreign public official. A Party which declines a request to extradite a person for bribery of a foreign public official solely on the ground that the person is its national shall submit the case to its competent authorities for the purpose of prosecution.”

Croatia does not extradite its nationals, apart from under a European Arrest Warrant or in accordance with an international treaty. MLACMA Arts. 32 and 35(1)(1) bar extradition of a Croatian national. No provision mandates Croatian authorities to prosecute a person whose extradition has been declined solely because of nationality. Under MLACMA Art. 62, a foreign judicial authority must request Croatia to take over criminal proceedings. The foreign judicial authority must also undertake not to prosecute the person after the final decision of their Croatian counterpart. A foreign request to prosecute is transmitted to the competent state attorney in Croatia (Art. 63(1)). A decision to refuse prosecution is relayed to the foreign judicial authority via the Croatian Ministry of Justice and Public Administration (Art. 63(3)). If prosecution proceeds, an offence committed abroad is considered to have taken place in Croatia, and foreign law applies if it is more lenient to the accused than Croatian law (Art. 64). Investigative actions taken by foreign authorities are considered to have been taken by Croatian ones (Art. 68).

The OECD Working Group on Bribery has recommended that Parties to the Convention ensure that cases that are declined for extradition solely on grounds of nationality are submitted to prosecution.2 In particular, the Working Group has stated recently that prosecution in lieu of extradition only upon the demand of a foreign state does not meet the requirements of Convention Art. 10(3).3

8.3. Conclusions on international co-operation in foreign bribery cases

Croatia has treaty relations in extradition and MLA with many foreign countries, mainly resulting from multilateral conventions in these areas and from anti-corruption conventions that provide for international co-operation. In the absence of an applicable treaty, extradition and MLA is available on the basis of reciprocity. To strengthen this regime, Croatia could consider the following:

a Provide a broad range of MLA, including coercive measures, in foreign bribery-related civil or administrative proceedings against a legal person to a foreign state whose legal system does not allow criminal liability of legal persons;

b Ensure that MLA is not refused because of ne bis in idem in cases in which criminal proceedings in Croatia have been discontinued on grounds other than the merits; and

c Ensure that cases that are declined for extradition solely on grounds of nationality are submitted to prosecution.

References

[1] European Judicial Network (2017), Notification of the transposition of Directive 2014/41/EU on European Investigation Order in criminal matters by Croatia, https://www.ejn-crimjust.europa.eu/ejn/libdocumentproperties.aspx?Id=2065.

[8] OECD (2020), Costa Rica Phase 2 Report, https://www.oecd.org/corruption/Costa Rica-Phase-2-Report-ENG.pdf#page=52&zoom=100,82,214.

[6] OECD (2017), Lithuania Phase 2 Report, https://www.oecd.org/corruption/anti-bribery/Lithuania-Phase-2-Report-ENG.pdf#page=54&zoom=100,76,566.

[5] OECD (2015), Phase 2 Report on Implementing the OECD Anti-Bribery Convention in Latvia, https://www.oecd.org/daf/anti-bribery/Latvia-Phase-2-Report-ENG.pdf#page=54&zoom=100,76,165.

[4] OECD (2013), New Zealand Phase 3 Report, http://www.oecd.org/daf/anti-bribery/NewZealandPhase3ReportEN.pdf#page=39&zoom=100,80,350.

[2] OECD (2012), Australia Phase 3 Report, https://www.oecd.org/daf/anti-bribery/Australiaphase3reportEN.pdf.

[7] OECD (2012), Spain Phase 3 Report, https://www.oecd.org/daf/anti-bribery/Spainphase3reportEN.pdf#page=14&zoom=100,76,550.

[3] OECD (2005), Hungary Phase 2 Report, https://www.oecd.org/daf/anti-bribery/anti-briberyconvention/34918600.pdf.

Notes

← 1.  For example, see (OECD, 2012[2]), paras. 124-126 and Recommendation 11; (OECD, 2005[3]), paras. 94 and 209(c).

← 2.  (OECD, 2013[4]), paras. 117-119 and Recommendation 8; (OECD, 2015[5]), paras. 187-188 and Recommendation 12(b); (OECD, 2017[6]), paras. 143-144 and Recommendation 9(b); (OECD, 2012[7]), para. 161 and Recommendation 7.

← 3.  (OECD, 2020[8]), paras. 192-194 and Recommendation 11(f).